Motion Of The Day...Once Again Nicholas Sheley Wants To Go Pro Se- Updated

Updated 4/17/2011 at bottom of post

 original post April 4

Newest mugshots at Pontiac Correctional Center

When I left home on March 29, 2011 for the Knox County courthouse to attend a case management hearing in the capital murder case of  Nicholas Sheley, accused of killing Ronald Randall,65, in Galesburg, IL., I told Mr. Katfish not to expect me back for several hours as this might turn out to be a long hearing.

This will be the first trial that Sheley faces related to the June 2008 killing spree of eight people that he is accused of. He also faces first degree murder charges in Whiteside County, IL for the deaths of 5 people and Festus, MO for the death of 2 other people. You can read about the killing spree here if you aren't familiar with the case.

I'm not sure what to expect today because this is the first hearing since IL Governor Patrick Quinn signed off on legislation to abolish the death penalty in IL on March 9. That legislation doesn't take effect until July 1, 2011, so unless the state decides to take the DP off the table before then, this will continue as a capital murder case until the legislation takes effect. At the last hearing, on February 4, there was discussion of discovery and evidentiary issues that may be argued at today's hearing, March 29. I wasn't able to blog about that hearing but
will reference it some in this post.

At a hearing on February 4, both parties argued a

 DEFENSE MOTION TO VACATE COURT ORDER AND FOR OTHER RELIEF
 and
 THE STATES RESPONSE TO DEFENSE MOTION TO VACATE COURT ORDER AND FOR OTHER RELIEF.

According to the Defense Motion To Vacate, There was a closed hearing on September 14, 2010  where the parties argued the State's First Motion in Limine to Admit Course Of Conduct Evidence and the Defense Response. After the Court reviewed the written and oral arguments of both parties, the court made a ruling as to what evidence would be allowed and ordered the state to prepare an order reflecting the court's ruling. On December 15, 2010 the state presented the order to the defense for review and the next day the state submitted the order to the court. The defense argued they had not been given sufficient time to review the order and the court allowed 2 weeks for resolve the issue with the state. It seems when the defense responded to the office of Bill Elward on December 28th so they could resolve any disputes to the language in the order, he was out of the office and he didn't return until January 2. On January 3 the court issued the ruling without further input from the parties; therefore, the defense sought to have the order vacated and reissued.

I can't tell you much about the order because it was under seal along with the original briefings. It was disclosed in the Defense Motion To Vacate that during the closed hearing the state conceded that even though they previously had stated in open court that they would seek to admit every prior bad act in Sheley's history, they had decided they would not seek to use every prior bad act, but just those relevant to this case....that is unless the defense opens that door at trial.

On February 4 Judge James Stewart said he held the order for 2 weeks and no one objected or let him know there was a problem so he issued the order on January 3. The state contends they tracked the court's ruling from the transcript of the September 14 hearing word for word.  Judge Stewart ordered both sides to file a redacted motion in limine with an offer of proof and a defense response within 2 weeks to be placed in the public record. (redaction's to eliminate any course of conduct evidence not allowed to be used). If I understand it correctly in the defense motion to vacate they contend, on September 14, the judge didn't make a ruling on the evidence but would tailor the courts ruling to was what specified in the the hearing by the state.

 Last week I picked up the redacted copies of the motions and pleadings, however I didn't see a new order in the file. It's possible I missed it, that is a heavy file. I linked all of the motions and pleadings mentioned in this post that aren't sealed on my docstock account so you can read them. As it turns out the course of conduct evidence wasn't even discussed in the March 29 hearing but I have been told it will be dealt with in the future.


PEOPLE'S OFFER OF PROOF IN SUPPORT OF ITS FIRST MOTION IN LIMINE TO ADMIT COURSE OF CONDUCT EVIDENCE 
and the  
DEFENSE RESPONSE TO THE PEOPLE'S FIRST MOTION OF LIMINE AND OFFER OF PROOF.

I was expecting an interesting hearing....and man ~ o ~ man interesting is an understatement.

Here is my in the courtroom report from the March 29 hearing:

When I came into the courtroom I wasn't surprised to see there were several from Ronald Randall's family here, they always arrive early and sit in  front row behind the prosecution. In the second row behind them is Shirley Pringle, the Knox County Victims Rights Advocate and a woman I have seen in court with Shirley before although I have never met her. The front row behind the defense table was reserved for the accredited press and there were already three members of the press seated.

In the second row behind the press was lead defense attorney Jeremy Karlin's administrative assistant and another young woman who looked familiar but I couldn't place.(I later learn she is Marissa Pendergrass from the CBS channel 4 (WHBF) in the Quad Cities. I embedded Marissa's video of Sheley leaving the courthouse and interviews with the State's Attorney, John Pepmeyer and Lead Defense Counsel, Jeremy Karlin at the end of my "in the courtroom" report...be sure to check it out.)

 I went behind Shirley and the other woman to my regular seat against a pole at the farthest end of the second row. After I took my seat, Shirley introduced me to the woman with her, her name is Stacy Dutton. Stacy is a very pleasant woman. I learned that Stacy is Shirley's replacement as Knox County Victim's Rights Advocate. Shirley tells me she retired last Fall. How the heck did I miss that? I did miss some hearings in November and December but the Shirley has been at every hearing I have attended so I didn't realize she was gone. LOL! Congratulations to Shirley and to Stacy!

The attorneys for both sides are standing at their tables. On the far right going left for the state is Michael Atterberry Assistant Attorney General, then Knox County State's Attorney John Pepmeyer, and closest to the defense is Bill Elward Assistant Attorney General. At the defense table right to left is court appointed Lead Attorney Jeremy Karlin and next to him is Co-counsel Anthony Vaupel, there is an empty chair next to Vaupel for the defendant.The court reporter and clerk are in place. It looks like everyone is ready to go to work. All we need now is the defendant and the judge. The clock is gone in the courtroom so I won't be able to track time. I see the Bailiff get confirmation they were ready for Sheley and shortly after he is escorted into the courtroom by several IL Department of Corrections officers and several Knox County Sheriff's deputies and bailiffs.

Nicholas Sheley is wearing a white button down short sleeve shirt and black pants. His hair seems to have grown out even since the latest mugshot at Pontiac shown above and is slicked back reminiscent of a 60's greaser. I wonder why his clothing has changed ? He used to wear a tan scrubs when coming from Pontiac. Has his status changed at the prison or have they just had a uniform change? If anyone knows I would like to hear. Last I knew he was in protective custody....has he been moved to general population? The waist and ankle shackles are louder today as he walks in and they look a little heavier...another hmmm. As soon as Sheley gets seated he says fairly loud, "What the fuck you looking at?" Vaupel touches his arm as if to say calm down. Sheley's comment seems to be directed at Bill Elward. For some reason Mr. Elward seems to be on Sheley's 'list'. He wrote a long scathing letter to the Ninth Circuit Judge James Stewart on Christmas Day 2009 about Bill Elward that was made a part of the public record. I have the letter posted here. Sheley motions for Jeremy Karlin to come over and then Sheley, Karlin and Vaupel go back to the holding area outside of the courtroom with the security detail.

Judge Stewart enters the courtroom and calls court to order then notices that the defense table is empty so we wait, the attorneys and those of us in the gallery go ahead and sit down.. It didn't take long before Sheley, his security detail and attorneys come back in. Sheley doesn't look happy. I can't see either attorney's face.
Stewart acknowledges both parties for the record and says," This case management hearing has been scheduled per Supreme Court rules." He mentions that the new law passed by the Governor takes away the death penalty, effective July 1, and notes that will effect this case.

John Pepmeyer stands to address the court and says that counsel for both parties have met prior to the hearing and agreed to September 19, 2011 for a trial date. That lightens the atmosphere in the courtroom a bit....it's about time. When Judge Stewart confirms that date with Jeremy Karlin, it's apparent Mr. Karlin is frustrated. (I don't think he even rose to address the court, which is unusual for him) Karlin replies he has no authority to set a trial date because of the document Mr. Sheley has just handed him. 

John Pepmeyer once again addresses the court and says the state is filing a motion to "de-certify" the death penalty in this case, adding the death penalty is no longer an available remedy in this case. (So it's official this is no longer a death penalty case as of today.) Judge Stewart makes sure the defense has a copy from the state. Pepmeyer also said he wants to make a record the people have tendered discovery labeled 14, contains enumerated fingerprint evidence. (Anthony Vaupel brought up this fingerprint evidence at the February hearing. I also remember Vaupel saying something about a deposition but I can't remember if that had to do with the fingerprints. My notes do say the state response was if the Governor signed the legislation the defense would not be entitled to the deposition. Moot point now I guess.)


Jeremy Karlin approached the bench and presented the court with a motion handwritten by Sheley stating his intention to represent himself.  This motion seems to have caught defense counsel by surprise as much as everyone else. Karlin gave the thick stack of papers to the judge and said they have not even read the motion yet and Sheley had advised the court this was the only copy. Karlin continued speaking as he returned to the defense table.....Mr. Sheley has instructed by his Pro Se Motion to bar any court appointed defense or any further mental health evaluation.

Bill Elward stood and said, " If he wants to play lawyer let him, and he can follow the rules. I apologize, this is just one more tactic from this defendant. If he wants to represent himself he must follow procedure. In order to file a motion he must provide copies to all parties, the court should not accept the motion until then."

Sheley is whispering to his attorneys. Judge Stewart says he will give 30 days for the defense to read the motion and decide how they will proceed. Stewart gets a date from the clerk and says April 25 at 9:30 a.m. adding there already has been an expert who has filed a report.

Elward addresses the court again, "For the record two Doctors evaluated and filed reports. (He says something about funding that I missed.) At what point do we get a copy? We are abundantly aware this is a delay occasioned by the defendant."

Sheley asks to address the court. Judge Stewart tells him he can't at this point. One of his attorney speaks for Sheley, " There are no copies because the exhibits included with the motion are under seal. There is no expectation of privacy in the DOC library anyone could see them. Not trying to play a game."

(My notes say he still has the obligation. It is what it is - remains un-filed. Sorry this is so cryptic, my notes don't say who said this, whether it is the judge or the state, likely it was Mr. Elward because my notes do show he spoke next.) 

Elward addresses the court again, " Ask Mr. Sheley if he is aware of the consequences? (of filing the motion)  We will be able to read and review."

Sheley then acknowledges that he understands.

( I have a few cryptic notes again  with no mention of who spoke....about a Motion to Extend, a Motion to Compel, additional discovery or affirmative defenses, trial testimony from his brother's trial. I believe these are issues that would have been addressed today until Sheley dropped his latest bombshell. I drew an arrow to the April 25 date, so evidently these issues will be addressed then.)

  
Judge Stewart says," We do still have to address this change in the law as to Mr. Vaupel. This should end Mr. Vaupel's services. " Stewart then ended the hearing.

  
Jeremy Karlin stands and asks the court to go back on record. Once we are back on record Karlin says, 
" Those documents were filed under seal to preserve the jury pool."
Elward is on his feet my notes just say NO.
Judge Stewart says he will not protect Mr. Sheley from his decisions, most were filed under seal because this was a capital case .(Emphasis mine)
John Pepmeyer asks the court to make copies of Sheley's motion....(which makes the motion public record).
I honestly didn't hear the judge end the hearing again...my thoughts were more along the lines of I want a copy of that motion. And $73.00 later I have it! I will address Sheley's motion and the exhibits he included in another post...this is long enough. A few thoughts from skimming the motion is that Sheley says over and over again how well he has conducted himself in court....well...except for that one time when he wasn't allowed to represent himself earlier in the case. I guess starting out this hearing with "What the fuck you looking at " just might count as a second example where he couldn't control himself. Included in the exhibits with Sheley's motion are his psych evaluations....it is noted he has impulse control problems....well yeah, ya think?! Stay tuned and be sure to watch Channel 4's video under this paragraph.



****************************************************************



UPDATE 4/17- Here is are  links to  Nicholas Sheley's handwritten Pro Se Motion. I am having trouble loading it on Docstock as a whole document, so I have split it into 3 parts. Be advised that on part 1 page 22 shows up first because I missed it when scanning. I can get page 22 in it's proper spot as a whole document  but not when separated as Docstock is requiring. grrrr...I WILL figure this out!

Nicholas Sheley Handwritten Pro Se Motion part 1
Nicholas Sheley Handwritten Pro Se Motion part 2
Nicholas Sheley Handwritten Pro Se Motion part 3 Sphere: Related Content

Nicholas Sheley Murder Case - IL Governor Abolishes The Death Penalty



Nicholas T. Sheley at Pontiac Correctional Center 2011

 It has been quite some time since I have written about the capital murder case of Nicholas Sheley who is accused of killing Ronald Randall, 65, in Galesburg, IL on  June 28, 2008. I sure didn't plan to get so far behind, but Mr. Katfish has been quite ill the past several months and of course that is my main priority. I recently found out I can tap into the hospital's WiFi connection on my netbook, so here we go......

Although there have been a number of  hearings since my last report, not much happened during these hearings to actually progress this case towards trial, rather things have been pushed back...several times.  The "wheels of justice turn slowly" is not just a cliche, it's a reality. When I last wrote about this case the court was planning for the trial to start in early 2011. Now we are looking at the Summer or possibly Fall of 2011 before this trial gets under way.


When I started writing this post back on February 5 (after attending a hearing on the 4th), I had planned to try and work backwards to catch up on this case but it's just not going to happen. I'll just pick up from the most recent development that effects this case, and it's a big development ! On March 9, 2011, Illinois Governor Pat Quinn signed legislation abolishing the death penalty in Illinois, more than a decade after the state imposed a moratorium on executions out of concern that innocent people could be put to death by a justice system that had wrongly condemned 13 men. Quinn also commuted the sentences of all 15 inmates remaining on Illinois' death row. They will now serve life in prison with no hope of parole. I'll address the effect of this legislation on Nicholas Sheley's case in this entry.

For readers not familiar with this case, Nicholas Sheley is accused of killing eight people ( including Randall ) in a week long killing spree during the last week of June 2008.  Five of the other seven people were killed in Whiteside County, IL, a 20 year old woman, her 2 year old son and three men ages 25, 29 and 93. (Whiteside County is where Sheley is from.) An  Arkansas couple, both age 54,visiting the St. Louis, MO area were Sheley's last 2 (alleged) victims and were killed in Festus, MO. You can learn more about the week of Sheley's alleged killing spree and the weeks leading up to to it by clicking here to see an early post titled " Sheley's Trail of Terror".

With the death penalty abolished in IL, the maximum penalty Nicholas Sheley (if convicted for the death of Ronald Randall ) can face is a life sentence without the possibility of parole (LWOP).  From what I understand, the trial should start sooner, be shorter and less expensive (if convicted, no penalty phase to decide the death penalty).


Nicholas Sheley's defense most likely will consist of one lawyer instead of the three or four he has now. Jeremy Karlin is lead attorney on Sheley's defense team and would remain so. I'm not sure if the Office of the IL Attorney General would still assist the prosecution of this case, but wouldn't be surprised if they did because of the gravity of the alleged crimes. 

Because this is a capital case, Knox County has not been responsible for the costs of this case, funding has come from the Capital Litigation Trust Fund, that burden will now shift to the county and the unspent money in the Capital Litigation Fund will be reallocated to pay for services for victim’s families and law enforcement training.


In the mean time this case is status quo and will proceed as a death penalty case until the new legislation takes effect on July 1, 2011,  unless the state files a motion to withdraw the death penalty before then.
As of the February 4 hearing the next scheduled hearing in this case is a case management hearing on March 29, 2011. We should learn more then.

A final note, Missouri has not abolished the death penalty, so Nicholas Sheley may still face death if he is convicted for the deaths of Tom and Jill Estes.....whenever his case makes it's way there.

Galesburg.com

Chicago Tribune



Sphere: Related Content

Nicholas Sheley Defense Asks For Special Prosecutor

WGIL Radio in Galesburg, IL reports that the defense for Nicholas Sheley filed a motion on Monday, July 12 to have a special prosecutor appointed in his capital murder trial. I haven't seen the motion yet, so I'll supply the article from WGIL.com Their article will appear in black italics in this post and my analysis and opinions of the case will appear in regular type.

The local attorneys for accused spree killer Nicholas Sheley say a recent order in their favor makes it necessary for a special prosecutor to be appointed in the case.

Documents were filed Monday in Knox County Circuit Court by defense attorney Jeremy Karlin asking for the special prosecutor.

Karlin cites an order signed last month by Judge James Stewart that allows the defense to seek certain testing or services on an "ex parte" basis -- meaning, without prosecutors being present -- and also allows the Department of Corrections to transport Sheley for that testing without telling prosecutors.

On April 1, 2010, Judge James Stewart issued an order directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The DOC filed an emergency motion  for leave to file a petition for an original writ of mandamus.The motion was denied and the order was entered by the court.

The IL Department of Corrections (IL DOC) then filed an emergency motion with the IL Supreme Court for a supervisory order. The motion was allowed. The Supreme Court wrote in it's order, " In the exercise of this Court's supervisory authority, the Circuit Court of Knox County is directed to vacate its order of April 1, 2010, directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The circuit court is directed to conduct a hearing at which the Illinois Department of Corrections may be heard on the subjects of safety and expense, and may suggest alternative orders."

That hearing was held on June 18 and the court, again, ordered the DOC to transport the defendant for the required testing. Stewart told the defense whenever they need an ex parte hearing they should notify the prosecution of the hearing so they are aware, but the order allows Sheley to be tested and transported without the knowledge of the prosecution.

I wrote an entry on the June 18 hearing when
Judge James Stewart upheld this order titled 
"The Nicholas Sheley Case, 
It's A Long And Winding Road To Justice".

But Karlin claims while the order means his side doesn't have to disclose parts of their case prematurely, the filing says "A party to these orders has failed to comply with the terms of these orders."

Karlin doesn't specify in the filing who's at fault -- just that a special prosecutor is needed to help enforce ex parte matters in the future.

Because of the position the IL DOC has taken regarding this transport, Katfish...ponders feels comfortable speculating that the DOC in some way notified the state of a transport. They may have notified another agency within the executive branch of a transport feeling they would still be in compliance but the state was notified ??? I just don't see the State's Attorney or Illinois Attorney General's office failing to comply with the judge's order, besides, how would they know unless it came from the DOC?

But he's now also asking the judge to dismiss the entire 17 count indictment against Sheley, accusing him of bludgeoning to death 65-year old Ronald Randall among other things over two-years ago now -- part of a suspected two-state killing spree, and to strike a notice of intent to seek the death penalty.

We can consider these latest motions as 
just another curve in that road to justice.

This isn't the first time Sheley's defense has made a motion to dismiss the 17 count indictment or to have the option to seek the death penalty removed. Those motions were previously denied in 2009. It's not clear without having seen this latest motion to dismiss and strike if they are being presented as sanctions for failure to comply with the court's order or just a continuing attempt to provide Nicholas Sheley with a vigorous defense. I tend to think it's the latter.

The Illinois Attorney General's office has aided the Knox County State's Attorney in trying the case, but Karlin says appointing a special prosecutor means Sheley's right to a fair trial will be maintained.
 

Again, this is just my opinion based on what little I know and have speculated about these recent developments.....If the DOC feels they must notify someone about these transports for safety reasons, maybe it is appropriate to appoint a special prosecutor or special master to oversee these exparte matters.

Sheley is currently serving a prison sentence for starting a fight with employees of the Knox County Jail last year. It's not known when this new motion will be heard. 

Katfish...ponders has learned there are hearings scheduled for July 29 and July 30, both at 1:45 p.m. to hear these motions.

In the meantime, several media outlets including WGIL have until Monday to respond to yet another subpoena in the case asking for documentation of their coverage of the case.

The defense filed a motion for a change of venue earlier in the case and have conducted phone polls in Knox County to support their motion. That motion was argued by both sides in November 2009 and Judge Stewart denied the motion calling it premature; however, he did not preclude the defense from renewing the motion pre-trial. The defense must be keeping up-to-date on the coverage in preparation to renew the motion. 

When denying the defense motion for change of venue in November 2009, Judge Stewart said, "Knox County has an interest in this case being tried in the county in which the alleged crime is said to have been committed." 

Any readers who are fellow trial watchers know that in some states the remedy the courts have used to avoid the expense and inconvenience of moving an entire trial, yet protect  right to a fair trial of the accused, is to bring a jury in from another county within the district. Perhaps in this day and age of 24/7 media coverage more states should consider this option. Off the top of my head I know of recent cases in Tennessee and Florida that have successfully done this......I haven't researched it but I know there are other states that do the same.

Sphere: Related Content

Nicholas Sheley Case, It's A Long And Winding Road to Justice

Updated at bottom- June 18

One thing I have learned from the many murder trials that I have observed is that even though there are rules of procedure set down by (both U.S. and State) Constitutions (such as the due process clause that ensures legal fairness)  and  legislators (statutory laws) there often are issues that arise that are unexpected.

In our system of justice when lawyers make their argument before a court or a situation arises that is not directly addressed in a law or the interpretation of the law is in question, the court depends on legal precedent or case law  (decisions of appeals courts and other courts which make new interpretations of the law that are derived from the application of particular areas of law to the facts of individual cases, and, therefore, can be cited as precedents) to support their argument or resolve the issue.

When the death penalty is on the table there are even more rules and exceptions to rules, but issues still arise that are unique. The capital murder case of Nicholas Sheley has had several unique issues come up in the preparation for trial. Recently there has been an issue come up that's been brought about by some action taken by the IL Department of Corrections (DOC).

Nicholas Sheley at Pontiac Correctional

Nicholas Sheley is a 30 year old Sterling, IL man, who has been charged with capital murder for the 6/28/08 bludgeoning death of Ronald Randall, 65, of Galesburg, IL. The trial is expected to start sometime between January to March 2011 . Sheley is also charged for five deaths in Whiteside County, IL and two deaths in Festus, MO. related to an alleged killing spree during the last week of June, 2008. Sheley is awaiting trial at the Pontiac Correctional Center, in Pontiac, IL after being sentenced to seven years in prison for a conviction on charges that alleged he attacked 3 correctional officers causing them injury during an incident at the Knox County Jail in April 2009. Prior to that conviction, Sheley had been held in the Knox County jail since July 2008 on a $10 million bond.

There has been two hearings related to this issue with the DOC. The first hearing was so vague that I didn't even write about it at the time. The second hearing shed a little light on the issue and I was able to find some information online, so I'll give it a try. This entry will include both hearings.

The first hearing, on May 14, about the issue raised by the DOC was short. There wasn't anyone from the prosecution for the murder case at this hearing. The IL DOC was represented by Chris Higgerson and Lea Bendik of the IL Attorney General's office. Lead attorney Jeremy Karlin, Co-counsel Anthony Vaupel ( both court appointed because Sheley is indigent ) and Nicholas Sheley were at the defense table.(escorted by 4 "big" guys from DOC)

At the beginning of the hearing, Jeremy Karlin moved to have the hearing closed. Ninth Circuit Judge James Stewart didn't feel there was authority to close the hearing and told the parties he wanted the issue briefed before he would consider closing the hearing.  Stewart said that in a criminal case there are mixed rights, the defendant has a right to a fair and public trial, but the press and public also have a  right to attend criminal trials.

Karlin told the court if the hearing isn't closed he would be forced to disclose defense theories to the public when discussing the objections the DOC has, adding that he also respectfully disagrees with expenditures previously authorized. Karlin acknowledged to the court this is a novel area due to the DOC position and reminded the judge that they were under deadlines. Judge Stewart responded any deadlines the defense is under are from this court and we are not discussing expenditure of funds. Bendik told the court the AGO agrees with the defense, but the judge reiterated he wants to be briefed.

Karlin requested that the record reflect the imposition on the defense of the DOC motions that are interfering with our attempt to__________. Oops I missed that in my notes but I think he was talking about preparing their defense and meeting deadlines. This is an area where the conversation seemed cryptic to this novice.... Stewart said something about April 1 and the Supreme Court also directs the conduct of_______(this court?) He continued that on May 11 there was a return of mandate. This is no case of controversy- will address when the matter becomes ripe. Bendik started to say something and Stewart said he rules this is not a case of controversy so the motion to unseal transcripts is moot. The case is continued to June 18.

I have been trying to find out what the issue is with the DOC, I didn't find this until after the 2nd hearing but I'll stick it in here so you will have a better idea what I'm talking about when reporting on that hearing. This is what I 've been able to find....On April 1, 2010, Judge James Stewart issued an order directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The DOC filed an emergency motion  for leave to file a petition for an original writ of mandamus. (A writ of mandamus is a writ issued by a superior court ordering a public official or body or a lower court to perform a specified duty.) The motion was denied and the order was entered by the court.
(This is speculation but because of the discussion at the end of the May 14 hearing, I think what the DOC wanted was the transcripts to be unsealed from an earlier ex parte hearing to authorize expenses for the defense.)

The DOC then filed an emergency motion with the IL Supreme Court for a supervisory order. The motion was allowed. The Supreme Court wrote in it's order, " In the exercise of this Court's supervisory authority, the Circuit Court of Knox County is directed to vacate its order of April 1, 2010, directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The circuit court is directed to conduct a hearing at which the Illinois Department of Corrections may be heard on the subjects of safety and expense, and may suggest alternative orders."

A week or two after the first hearing, once again, a little birdy notified me there was a hearing scheduled for June 11 at 10 am. {{Hugs}} The birdy also told me this was to hear arguments about who would pay for transporting Sheley for tests, so I'm surprised when  Assistant Attorney General Bill Elward and Knox County State's Attorney John Pepmeyer come in and take a seat at the state table. (I expected to see the 2 who had represented IL DOC at the last hearing.) At the defense table is  Lead Attorney Jeremy Karlin and Co-counsel Anthony Vaupel. John Hanlon is also here for the defense. Hanlon is from the Office of the State Appellate Defender (OSAD) in the Capital Trial Assistance Unit in the Springfield office.

We still have a little time before court so Karlin and Elward are talking a little sports across the aisle...I didn't hear who, but someone is the worst sports franchise ever. LOL ( These guys may be friendly with each other when court is out of session, but once the hearing starts they are very professional and definitely serious about their adversarial roles.)


There are 3 people sitting in the reserved seats for the press, directly behind the defense. I recognize the reporter from Whiteside County, we both motion hello. I sure miss Susan Kaufman from the Register-Mail. ~ I'm  waving if your reading this Susan ~  The other 2 are new faces (after court I introduce myself and one of the new faces is from the Galesburg Register-Mail and the other is a new reporter from WGIL a local radio station.)

A little after 10, Nicholas Sheley is brought in by 2 DOC officers, he is fully shackled and wearing his tan DOC uniform, I couldn't help but notice he's sporting brand new Nike shoes.(In the county jail he had to wear plastic sandals year round).

Judge Stewart enters and court is in session.(Again, my notes today are sort of cryptic because they seemed to talk that way.....and they weren't saying exactly what the issues were. I will do my best to "fill " them out a bit given the information I gathered after this hearing)

Judge Stewart says that there are several issues for today:
          There are issues for both parties to brief.
          The defense has also filed a motion to extend discovery.

Jeremy Karlin rises to address the court.
He mentions the interpretation of section 10c of the Capital Litigation Act :
     1. Addresses certification of expense and the question whether the court has power to do so ex parte.
      2. Whether at a future date or whether should be done in camera.
Karlin says the state agrees the court has authority to enter orders if the date, time and place are known. Karlin gives Judge Stewart the agreed proposed order.

Bill Elward addresses the court for the state and says they agree to the order with an amendment to the second line, first sentence.(This will make more sense once I see a copy of the order)

 Judge Stewart says he wanted both sides to offer briefs and make a record. Stewart acknowledges even though he agrees with the language in the order and signing it,  this is unusual because the IL DOC is a part of another branch (executive branch)of the government . The separate branches of government do not  have authority over each other.
(The way I understand the situation is the DOC is objecting to transporting Sheley for these defense requested tests because of financial and security reasons. The defense wants this undisclosed testing done in order to effectively prepare their defense.)

Judge Stewart tells the court the legislature has recognized the need for the defense in a capital case to prepare a defense for the guilt phase and for mitigation in the penalty phase if there is a conviction.Stewart adds there is provision in the Capital Litigation act for ex parte hearings (for the benefit of one side or party, in this instance the defense, in the absence of the other) for expenditures on expert witnesses. He says this boils down to an equal protection argument. If the defendant could afford to hire his own expert witnesses the defense wouldn't have to disclose to the prosecution who they have consulted and would not want to do so.

Judge Stewart even offered an example, for instance if the defense consulted with an expert who determined they could not support the defense's position, the defense wouldn't use them; however, if the state was privy to the identity of this expert just because the defendant was indigent, they could seek the expert out for their own case, which would give the state an unfair advantage. If the defendant was then found guilty, the conviction could be overturned because this unfair advantage could result in the denial of due process.

Stewart said therefore he will side with the defense, but if the Supreme Court overrules there would be no harm to the state because they would then be privy, adding if this court is wrong a bright line test can be done. The court orders the DOC to transport the defendant for the required testing. Stewart told the defense whenever they need an ex parte hearing they should notify the prosecution of the hearing so they are aware, but the order allows Sheley to be tested and transported without the knowledge of the prosecution.Judge Stewart said the court is trying to preserve the rights of everyone.

Karlin in referring to the defense motion to extend discovery deadline, told the court because of the nature of what we just did (order for testing), we don't want to mislead the court or the state when we are still investigating.

Bill Elward rose and told the court the state feels a little handicapped. The state has an offer of proof for their motion in limine due by 6/30. Can't the defense make some response? They can amend if needed adding at some point the state will file a motion to compel.

Stewart said the matter will be set for the next hearing, June 18 (tomorrow) acknowledging unusual circumstances have been involved in the issues brought by the DOC.

There are two more hearings tomorrow, Friday, June 18. The first hearing will be at 10 am. It will be a closed hearing and I'm pretty sure it will be exparte. The second hearing will be "open" and is scheduled for 11 am at the Knox County Courthouse in Galesburg, IL.

Yes, it's a long and winding road but we will get there.....

Update- June 18

I went to the hearing today at 11 am,  but everything that needed to be done was accomplished in the closed hearing. The closed hearing was in camera (versus exparte) and attended by the defense and the attorney(s) from the IL AGO representing the IL DOC. I recognized Lea Bendik from the May 14 hearing. I'm not sure who else from the IL AGO attended as the closed hearing was done by the time I got there. Of course, we aren't privy to the results of that hearing....we'll just have to wait and see if the DOC goes back to the Supreme Court or if Judge Stewart's order to transport Sheley for testing stands.

I stayed around the courthouse a bit and was able to find out that the defense motion to extend deadlines resulted in an agreement between the parties to extend deadlines as follows:

The previous state deadline to enter their offer of proof for the defendant's prior bad acts was extended  2 weeks to July 15.

The defense response to the state's offer of proof is due August 15.

The defense deadline to enter any known Affirmative defenses per Supreme Court Rule 413 is moved to September 15.  
(Affirmative defenses operate to limit, excuse or avoid a defendant's criminal culpability, even if the charges are admitted or proven. Whereas a defendant normally has no burden of proof, when offering an affirmative defense, the defendant usually must affirmatively come forward with some evidence that the defense exists; hence, "affirmative" defenses. A few examples of affirmative defenses are an alibi, self-defense or an insanity-defense.)

I may do an entry on the not-guilty by reason of insanity defense sometime. Not because it applies to this or any other case I'm following, but because the concept interests me. Did you know Illinois doesn't recognize a not-guilty by reason of insanity defense? Each state has a different standard for this defense....like I said...I'll get into that some other time.Stay tuned. ;)

Oh and one more thing.....I was told that the worst sports franchise ever, that I referenced from the June 11 hearing is the Blackhawks, but that was then, I'm told that now the Blackhawks are now the best franchise. LOL! Sphere: Related Content

Waiting, Waiting, And Waiting Some More....Judge Rules Nicholas Sheley Trial Won't Begin Until 2011

Nicholas Sheley mugshot

The hearing I attended at the Knox County Courthouse on April 29, was originally intended to be a telephonic scheduling conference between Ninth Circuit Judge James Stewart, the Prosecution, the Defense and defendant Nicholas Sheley who is housed in the Pontiac Correctional facility. Judge Stewart had scheduled the teleconference earlier this year in an effort to save Illinois some travel expense. Some of the attorneys for the state, one of the defense attorneys and Nicholas Sheley are located through out the state between Chicago and Springfield.

 Unfortunately,  the prison phone system couldn't forward the call into the area of the facility where Sheley is held, so Sheley was transported two hours each way for this half hour hearing.Why Sheley couldn't be brought to an area of the prison where the call could reach ?? I don't know. Kudos anyway to Judge Strickland for trying to keep an eye on the expense. The purpose of the teleconference  was to schedule some hearing dates and deadlines in preparation for the upcoming capital murder trial of Nicholas Sheley, 30, for the murder of Ronald Randall, 65, of Galesburg, IL . Sheley is also charged for five deaths in Whiteside County, IL and two deaths in Festus, MO. related to an alleged killing spree during the last week of June, 2008.

 I made my way up the stairs to the second floor courtroom about 1:15 pm. The hearing was scheduled to start at 1:30 pm so I had a few minutes to spare. I stopped for a minute to talk to a reporter from Whiteside County, Tara Becker, before taking my usual seat behind the family of Ronald Randall. They always sit in the front row behind the prosecution. This spot gives me a good view of the entire courtroom and a pole to lean on.

 A side note that may be of interest: At the last hearing Tara Becker told me she was reporting on the sale of  the Thompson State Prison to the federal government. I asked how that was going and she said the prison is officially closing as a state owned facility and the few prisoners who were housed there have been moved. In December 2009 President Obama directed the federal government to buy the near-empty state prison in rural Thomson, Ill., to house maximum security federal inmates and lease a portion of the prison to the Department of Defense to house detainees from the U.S. detention center at Guantanamo Bay, Cuba. The suspected terrorists from Gitmo will not be allowed visitors and the facility will be at least as secure as a super-max facility. The decision is part of a plan for shutting down the controversial Guantanamo detention center. OK, back to the  Sheley hearing.....

In the next few minutes two more members of the accredited press arrive and three of the attorneys from the Attorney General's office for the prosecution and two of the lawyers for the defense. Bill Elward, Micheal  Atterberry and Steve Plazibat from the AGO take their seats in front of where I'm sitting. Lead defense counsel, Jeremy Karlin comes in with new co-counsel Anthony Vaupel.  They take a seat at the defense table, Karlin opens his laptop and they look ready for business. Knox County State's Attorney John Pepmeyer and John Hanlon from the State Appellate Defenders Office won't be in court today.

Right at 1:30 Nicholas Sheley is escorted into the courtroom by four (pretty big) corrections officers from the Pontiac State Prison. He is wearing his tan color prison garb, is fully shackled at his waist and feet. I notice instead of the rubber sandals worn at the county jail, Sheley has on some canvas sneakers. One of the CO's keeps hold of a ring on Sheley's waist chains until he is seated. There are a few Knox County Sheriff deputies and bailiffs in the courtroom as well. As soon as they have Sheley situated, Judge James Stewart takes his seat at the bench and the hearing is under way.

Judge Stewart explains that the scheduled teleconference didn't work out so we are here to do the same business. He first said they couldn't get the  prison on the call, and then said, "well, not to where Mr. Sheley was". Stewart also said that he has four issues that he wants to cover today :

1) Defense co-counsel Anthony Vaupel to update the court on his progress of familiarizing himself with the  case.
2) If the state has complied per Supreme Court rules 412 ( Disclosure to Accused )
3) If the defense has complied per Supreme Court rules 413 ( Disclosure to Prosecution )
4) There is a scheduling motion to be heard.

Judge Stewart asks what the state has on their agenda for today? Bill Elward stands to speak for the state. Elward says they want to set a trial date. Previously the trial was expected to start in October or November 2010 before lead counsel Public Defender James Harrell left the defense. The state is asking for a realistic date that they can work backwards from to set deadlines. Stewart agrees there have been issues with lawyers and other collateral issues that make it necessary to reset the schedule.

Anthony Vaupel rose to address the court. He informs the court that he has been able to read through all of the discovery (over 10,000 pieces of evidence), the court filings, and has reviewed most evidence on disk.
Judge Stewart asks where the other attorneys on the defense are in reviewing what has been submitted in the case? Jeremy Karlin stands and informs the court he has read the entire case multiple times. He adds that he can't speak for Mr. Hanlon, but when they have discussed the case Hanlon is able to speak intelligently about the case. ( I checked my notes and at a case management hearing six months ago, on December 4, 2009, Mr. Hanlon answered that question by saying," all but the last box".)

Judge Stewart says well," How about October or November, does the state have all of it's evidence and it's investigation done?"(Stewart had originally targeted sometime between May and October 2010 for the trial.) Jeremy Karlin says he doesn't see anyway  they can be ready by then. The question of the Motions in Limine for "course of conduct evidence" remains unanswered.

In 2009 the defense filed a Motion in Limine To Exclude Evidence of Other Alleged Crimes or Other Alleged "Bad Acts" at Trial, that hasn't been ruled on. In January 2010 the prosecution filed it's response to the defense Motion in Limine, their first Motion in Limine to admit Course of Conduct Evidence and simultaneously filed a Motion to Seal their Motion in Limine and any defense response because it contains evidence that may or may not be presented as evidence at trial and could taint the jury pool. At several previous hearings Karlin has referred to this as the $64,000 question because he can't comply with Supreme Court rule 413 as to expert witnesses and an affirmative defense until he knows what and how the state intends to use the evidence at trial. The state has contended they can't make that decision until they have some idea of what type of defense will be used. In court documents filed in March, Stewart ruled they would keep the motion sealed until there is a hearing to determine what evidence will be admitted, then the prosecutors will redact inadmissible portions.

Judge Stewart asks Karlin how long after that question is decided would the defense be ready for trial? Karlin replies February or March of 2011. Michael Atterberry stands and tells the court the state will be prepared to try the case then. Stewart says he is not ruling out January, and tentatively sets January to March 2011 for the trial unless circumstances arise that would interfere with that time period. The judge says they need to set deadlines for depositions and a close date for all motions to be filed.

Judge Stewart then asks if  the state has fully complied with 412? Michael Atterberry said, " We believe we have substantially, we're trying to provide what the defense motion just asked for, we have contacted the lab." (This is the first I've heard of this motion, I'll have to see if I can get a copy.) Stewart asks, " Does the defense feel they have complied with 413? Jeremy Karlin replies,"To the extent we know what our defense is."

Atterberry tells the court,  the state can re-plead their Motion in Limine and  asks for 3-4 months to prepare. Stewart says July or August for the state to re-plead and 30 days for the defense to respond, it shouldn't take as long for the defense to respond as it does the state to prepare to re-plead.. Karlin says any information about how the state intends to narrow.....the state conceding is good; however, that doesn't eliminate the defense need for the court to hear live testimony. Atterberry says 3 months needed. Stewart asks if it's necessary for the state to re-plead? Michael Atterberry says the state will do it as an offer of proof by July 1, June 15 at the earliest.

Stewart says if Mr. Karlin decides he wants to have testimony heard the court is available, and adds the deadline for the state to re-plead as an offer of proof is June 30 and then we need to have a case management hearing in July. Karlin says the defense would like an opportunity to respond.The judge says how much time needed to respond? Karlin tells the court 60 days to draft is reasonable, 60 days to respond. Then Karlin must have reconsidered because he says," I agree it's harder to re-plead, how about 45 days?". Judge Stewart responds," 30 days should be enough time, July 30 to respond, and a case management conference August 6 at 1:30.

Judge Stewart asks if the defense can disclose their defense based on the information they have? Karlin says they have done that, but not an affirmative defense, adding the defense can do that within 21 days of the hearing to decide the Motion in Limine. Stewart says 21 days from now. Karlin stands his ground, he tells the judge he doesn't mean to be obstinate but there are some investigations that aren't completed. Stewart tells Karlin he wants them to disclose some affirmative defense by June 30. Karlin answers they (the state) are entitled to know when I know. Stewart says it has been 2 years, it can be amended. ( It seems as though the judge is trying to be as fair as possible here, the state has conceded to re-plead their motion, so the defense can offer up some type of defense.)

Bill Elward stands and asks the court for some confirmation as to the dates that have been set. He lists
offer of proof 6/30, defense response 7/30 and case management hearing 8/6.
Karlin isn't happy with this schedule, he says,"We have addressed this issue, the schedule has us telling you an affirmative defense on the same day." Judge Stewart again says, after 2 years you should... Karlin interjects  but we will have additional information to obtain.

Anthony Vaupel says something about a motion for fingerprint evidence.(This must be the motion mentioned earlier by Atterberry.)  We just got the motion yesterday,Atterberry replies, we have conceded, we'll see if the information supplied is ok. Vaupel asks the court if this can be addressed at the case management hearing on 8/6. Stewart must have agreed because the next thing I heard was an order will be submitted.

Court is recessed. 

The DOC guard grabs the hoop on the back of Sheley's shackle. Sheley takes a scan of the gallery and he is led from the courtroom with his entourage of security to head back to Pontiac Correctional Facility. I spoke with someone who saw them arrive today who said Sheley and  the four guards made the 2 hour trip in 2 vehicles. Sphere: Related Content

Nicholas Sheley, R. Kelly, Tiger Woods and YoYo Ma ?

Wondering what an accused spree killer, a rapper, a golfing legend/alleged adulterer and a famous cello player have to do with each other? The answer depends on if you are the prosecution or the defense. I’ll explain that more in a bit, I will say these four names came up in court during the same hearing.

There was a pre-trial hearing on Friday, February 19 in the case of IL vs. Nicholas Sheley at the Knox County Courthouse in Galesburg, IL. Nicholas Sheley,30, of Sterling,IL is accused of killing eight people during a week-long two-state killing spree in late June 2008. Katfishponders has been attending the pre-trial hearings and providing "in the courtroom" reports" of the capital murder case against Sheley in Knox County, IL for the bludgeoning death of Ronald Randall, 65 Galesburg,IL.
So here we go…..

I feel really good when I arrive at the courthouse about 9 a.m.. My favorite parking spot was open and I’m early for once. I make my way through security and see a friend, we’ll call “Brownie”, who is a bailiff working the reception desk today. He looks at me kind of funny, he knows I come for Sheley’s hearings, his look tells me something is wrong. He says, ”I thought that was this afternoon.” Ever confident, I say, ”Really? I was hoping it was this afternoon, but when I checked my notes from the last hearing at 2:30 this morning they said this hearing starts at 9:30.” ( I was up late writing a blog entry for the Stacey Barker case out in LA.) Brownie shrugs his shoulders, smiles and points to the stairs for me to head up and see for myself.

I look in the courtroom and there are quite a few people in there, but I don’t see any of the victim’s family in the front row and I know Brownie is right. Shirley Pringle, the Knox County Victim’s Rights Advocate, comes out from the courtroom and says, ”It’s not until 1:30”. That was nice of her. She is an indispensable component of the legal system in Knox County and a very nice lady.

I decide to use this time to see if I can get copies of any motions filed recently in the case from the clerk. There are several motions that will probably be dealt with today, so I pay the clerk and make arrangements to pick them up before the hearing starts.

When I come back at 1 p.m., I stop and pick up the motions from the clerk and head into the courtroom. I’m glad to see Ronald Randall’s family in their normal front row spot with Shirley Pringle. We all visited as people are making their way into the courtroom.

The well is full on the state side today, Knox County States Attorney John Pepmeyer, and three attorneys from the Illinois Attorney General’s Office (IAGO) Bill Elward, Michael Atterberry and Steve Plazibat are seated at the table and another attorney from the IAGO is seated behind them against the wooden railing that separates the well from the gallery.

On the defense side are Public Defender Jim Harrell, Co-counsel Jeremy Karlin and John Hanlon, an attorney from Springfield, who represents Sheley on behalf of the Office of the Appellate Defender. On January 15, Jim Harrell filed a Motion To Withdraw from this case due to a breakdown in communication between him and Sheley. That is one of the issues to be dealt with in today’s hearing.

Nicholas Sheley is brought into the courtroom at 1:35. He is dressed in a tan color prison jumpsuit and is sporting a 2” + goatee. He is escorted, fully shackled, by 2 guards from IL Department of Corrections (IDOC) and 2 transport deputies from the Knox County Sheriff’s office. Sheley takes a seat at the defense table with one guard in a chair closely behind him and the other standing next to him. The Sheriff and the Jail Administrator are here too.

At 1:40 Ninth Circuit Judge James Stewart calls court to order. After acknowledging both parties, Judge Stewart says there are three matters the court will address today. A Motion to Withdraw, Motion to Seal, and Motion to Extend.

After deciding to start with the Motion to Withdraw filed by Public Defender Jim Harrell, lead attorney for the defense, Judge Stewart addresses the courtroom. He tells us this portion of the hearing will be closed. Although most hearings are not closed to the public, the Motion to Withdraw necessitates it, especially as this is a capital case, because there will be discussion that will involve attorney client privilege and possibly defense strategies. With that the Judge tells the state and everyone except the defense counsel and the court reporter to leave the courtroom, he doesn’t really say how long it will take so we all just head out into the hall for what turns out to be a 50 minute wait.

I took a seat next to a reporter from Whiteside County. She attends almost every hearing even though it is an hour and a half drive. Nicholas Sheley is from Whiteside County and 5 of the 8 people killed in his alleged killing spree are from there. She is also covering the Thompson State Prison, a prison that was newly built and never opened because of lack of funds. IL is hoping the federal government will buy Thompson to house the prisoners from Guantanamo Bay when it closes. That’s another story but it was an interesting conversation.

When we went back into the courtroom, Judge Stewart says that after questioning Sheley and Harrell, he finds there is a breakdown in communication, so he will allow Jim Harrell to withdraw from the case. Stewart then addresses Jeremy Karlin, he acknowledges Karlin has already been performing the position of lead counsel de-facto but says because this is a capital case, he is required to qualify him for the position and then did so by asking Karlin a series of questions. After Karlin answered the questions Judge Stewart said he appoints Jeremy Karlin as lead attorney on the case.

Stewart tells Harrell he can leave and tells the court he understands Anthony Vaupel will take Karlin’s position as co-counsel. James Harrell left the courtroom and Anthony Vaupel stepped up to the defense table. Judge Stewart went through a series of questions with Vaupel to qualify him as co-counsel and then admitted him to the case and Vaupel took his seat at the defense table. You can read more about the players on the defense team here.

Judge Stewart says he will address the State’s Motion to Seal next. Michael Atterberry gets to his feet for the state. He says that the state wants make it clear to the court that in filing this motion they are only asking to seal the “State’s 1st Motion Of Limine To Admit Course Of Conduct Evidence“, they are not asking to close hearings.

Karlin responds that paragraph 1 of the “State’s 1st Motion In Limine To Admit Course Of Conduct Evidence” (handed over to the defense in chambers on January 25 but remains sealed to the public until the judge rules on the state’s motion) says the state only wants to seal the motion and any further relief as the court deems fair and equitable. But... they also ask in their motion to seal any response and subsequent pleadings as well because there are a number of allegations in there and we are seeking to avert any pretrial publicity that might effect the defendant’s right to a fair trial.

Karlin says, as we state in paragraph 5 of our Response To The State’s Motion to Seal the state argued at the time of our “Motion To Change Venue” that the effect of media coverage was speculative and unknown. It appears now that State is willing to concede that corrective measures are necessary to protect against the effect of prejudicial pre-trial publicity and safeguard the defendant’s right to a fair trial.

Karlin continues, our “Supplemental Response to State’s Motion To Seal” asks to deny the “State’s Motion To Seal” because the points and authorities cited by the state in People vs. R. Kelly are incorrect to support their motion. (The state cites a 2008 child pornography trial against rapper R. Kelly in which the state successfully closed the public’s access to similar documents due to Kelly’s celebrity status as support to do the same to preserve Sheley’s right to a fair trial. Katfishponders didn‘t get the State's Brief of the points and authorities from the R.Kelly case because it was too large to handle.)

Judge Stewart asks Atterberry what in People vs. Kelly do they apply to their motion the sealing of transcripts and the presumption of public access? (I think I have this right??)

Atterberry says in considering and researching motion to close hearings. (LOL, maybe I should have forked over the $$ for the State’s brief citing Kelly, this might make more sense.)

Jeremy Karlin is back on his feet and tells the court the state has yet to file a response to the defense “Response To State’s Motion To Seal“. He says the “State’s 1st Motion In Limine To Admit Course Of Conduct Evidence” is actually a response to our “Defense Motion In Limine To Exclude” that we filed in March 2009. Their motion seeks to admit any alleged crimes but we’re concerned the intention is to use them to act as a “bootstrap” to later attempt to close the trial to the public altogether.

(Actually the state did file a People’s Response To The Defense Motion Of Limine To Exclude Evidence Of Other Alleged Crimes or Other Alleged Bad Acts At Trial. The state’s response was filed with the clerk on January 22, 2010. I think what he is saying is the motion the state seeks to seal responds more to the merits of the “defense motion to exclude” than the actual “people‘s response to the defense motion to exclude“. Whew...are you still with me?)

Karlin tells the court that the state is making a 180 degree change in their position from what they argued at the time they argued the “Change Of Venue Motion“ when they now argue that pre-trial publicity would adversely effect the defendant‘s right to a fair trial. We concur with the prosecution that there is a substantial probability our client’s right to a fair trial will be prejudiced by access to the State’s pleading and to the public hearings that must follow. The remedy the state seeks, to seal the motion, unfairly creates tension because it requires the defendant to forfeit his right to public proceedings. The alternative remedy is a change of venue.
We were caught off guard when the state filed it’s points and authorities after our response. If the state had filed a response….

Karlin continues there are many reasons the People v. R. Kelly case is inapplicable to this case:

In the Kelly case, the defense and the state agreed in sealing the proceedings, records of transcripts and pleadings. In this case the defendant is not willing to trade off rights.

It is true this case has received unprecedented media coverage in the Knox County area and those other areas the defendant is alleged to have committed murders, but this case is not the same level of publicity as the R. Kelly case. Mr. Sheley is not a celebrity like R. Kelly or Tiger Woods. This case has not received the national and international media attention that the Kelly case did. (Ha, you can say that again! Although Sheley did make Nancy Grace and Greta VanSustern shows, believe it or not that is how I learned of this case, even though one of the alleged crime scenes is just a few miles from my home.)

The timing of the motions in Kelly were just 5 weeks before jury selection. Not so in this case.

Lastly in the Kelly case, the hearing to suppress was comprised mostly of proffers of evidence and arguments of counsel.

The defendants position is this case is more similar to Waller (cited in in defendant’s first responsive pleading) because in this case, for the court to make pre-trial determinations on the admissibility of evidence , it must hear and see the evidence in the form it will be presented at trial. It is anticipated the hearings in this case of whether to admit or exclude evidence of other alleged crimes or other alleged “bad acts” at trial won’t merely be proffer of evidence or argument and statements from counsel, but will involve intense examination and cross-examination of witnesses.

JK adds, if the State cites new cases when it files their response to our response we want the opportunity to respond.

JK-The State is judicially estopped from arguing that pretrial publicity requires a remedy of closure of pleadings and proceedings because the State’s argument is the exact opposite of what it argued in the “Defendant’s Motion To Change Venue”. We ask that the remedy not be to replace publicity but, to change the jury so that all of my client’s rights can be protected.
(The doctrine of judicial estoppel provides that when a party assumes a certain position in a legal proceeding, that party is stopped from assuming a contrary position in a subsequent legal proceeding.)

Judge Stewart says the court will take a brief recess, everyone stands as the judge leaves the courtroom. Sheley is escorted out of the courtroom.

Many of the people in the gallery stay seated for the brief recess and then stand again when the judge returns to the bench. After we all take our seats and court is resumed Jeremy Karlin remains standing. Judge Stewart asks Karlin why are you standing? Karlin replies, “I’m waiting for my client to enter.” With that Anthony Vaupel stands too and Sheley is escorted back into the courtroom. (LOL, I don’t know if I ‘ve ever noticed an attorney do that before.)

While still standing, Karlin asks to be heard a bit more. Judge Stewart says go ahead.
Karlin says in the R. Kelly case, motions to other crimes evidence was made under seal and not on record, so the Kelly case cannot be used in this case. Karlin says he just doesn’t see it, and then adds he presumes he will be corrected. (grins and sits)

Judge Stewart commented, “I thought you were going to break out a cello there for a minute.” then someone said, “Yeah, like YoYo Ma.” ( I’m not sure who said that because I was trying to catch up on my notes and missed part of this exchange ) Everyone laughed. ( I guess it was getting kind of dramatic in here.)

Michael Atterberry stands to respond for the State. He says on page 50 of the R. Kelly case the court did state the constitutional presumption of access does not apply.

MA-On paragraph 22 of the defense “Supplemental Response To State’s Motion To Seal” the defendant concedes that making the “State’s 1st Motion In Limine” public would create pre-trial publicity that might jeopardize his right to a fair trial if evidence is ultimately deemed inappropriate for trial. So why, if the defense concedes with the state’s position, ask to make the motion public? Atterberry adds, a motion for change of venue is not before the court today. My notes then say, “a self- fulfilling proposition”.

Atterberry continues, when [arguing COV] the court ruled that the publicity that had been released thus far didn’t adversely effect the defendant right to a fair and impartial jury. Our position in this motion is not consistent with judicial estoppal. The defendant is taken aback by what is asked to be sealed? We are only asking for the “ State’s 1st Motion In Limine To Admit…” be sealed, nothing else. In light of the Defense’s concession to our position that pre-trial publicity of the allegations in our motion could adversely effect the jury pool and the right to a fair trial. All concerned that the defendant receive effective assistance of counsel should also ask to seal.

Judge Stewart tells the court that there are a number of provisions that sometimes conflict depending on how the decision effects those amendments, he concludes he will take the
“State’s Motion To Seal” under advisement and will notify the parties of his ruling by letter in the coming weeks.

Stewart says the final matter of business to be addressed is the “ Motion To Extend Defense Deadlines “.

Karlin stands again and says the motion to extend speaks for itself but I feel it necessary to speak for my client. This motion brings up the $64,000 question…..the defense is obligated to disclose experts pursuant to Supreme Court Rule 413.

JK- The current disclosure date of February 26, 2010, was set by this court after the defendant argued, without written or timely objection from the State (at Dec.4 hearing), that he was unable to comply with previously set deadlines due to the open question of what other crimes evidence could be admitted at trial. That question is still not answered and the state didn’t file an objection so ask [them?]. We need more time for Mr. Vaupel to consider the legal aspects to assist in our response.

Judge- How much time?
JK- 1 month
John Pepmeyer - The State has no objection, recommend we revisit experts when….precisely what is 30 days? They do have an obligation to disclose experts.
JK- We are just asking for a general extension on experts. We identified an expert today that we can put on record, if court wishes we can disclose some others in 30 days.
Judge- March 22 for response to their motion to strike and 1st Motion In Limine. Court will grant defense extension.
Steve Plazibat- file motion to apply reasoning for permissibility is reasoning of defense. (?? My notes are not specific…this is what they say.)
Judge to Defense- You are under obligation to disclose.
JK- Someone has to step forward first.

(The Judge accused both sides of arguing in circles over this issue at the December 4 hearing….neither side wants to give. I found a letter written by Nicholas Sheley on Christmas day about his concerns from that hearing….I will post that in another entry. The letter doesn’t change anything in the case but does give some insight into Nicholas Sheley.)

Judge Stewart tells both parties they will do a telephonic conference call on April 9 to schedule the next hearing and get an update on Mr. Vaupel’s progress in reviewing the over 12,000 pieces of discovery documents. Stewart asks the defense to coordinate with the IDOC so the defendant can listen to the hearing, but he will not be able to speak on the call, it’s for scheduling purposes only. The defense can confer with client later about thoughts on the call.

Court is recessed! (Whew, I’m out of here…a long day.)
Sphere: Related Content

A Look At The New Make Up Of Nicholas Sheley's Defense Team

On January 15, 2010, the court appointed lead counsel for alleged spree killer Nicholas T. Sheley, Public defender James Harrell, filed a motion with the Circuit Court for the Ninth Judicial District in Knox County, IL to withdraw from Sheley's capital murder case for the death of Ronald Randall,65, of Galesburg,IL.

Nicholas Sheley is a 30 year old man from Sterling, IL who is accused of going on a week-long crime and killing spree in the last week of June 2008. Sheley has been charged in a 17 count indictment that includes 10 counts of first-degree murder as well as 7 other charges for various other offenses related to Ronald Randall's bludgeoning death in Galesburg, IL. Sheley is also accused of of committing 5 murders in Whiteside County, IL and 2 murders in Festus, MO. If convicted in Knox County the state will seek the death penalty.

On February 19, Ninth Circuit Judge James Stewart granted Public Defender James Harrell's motion to withdraw from the case. After a 50 minute closed hearing between Stewart, the defense attorneys and the defendant, Stewart calling the motion unusual, said he does find there is a "breakdown of communication" between Nicholas Sheley and James Harrell.

Judge Stewart approved Jeremy Karlin as lead counsel, adding Karlin has been lead counsel de-facto, now it is official. I agree with the judge's statement because Karlin has been the counsel that has presented motions and argument during all of the hearings I have attended. To replace Karlin as co-counsel, Stewart approved local attorney Anthony Vaupel for that position.

Vaupel is the only other attorney in Knox County who is a member of the Capital Litigation Trial Bar, a necessity in IL to try capital cases. John Hanlon from the Office of the State Appellate Defender is still assisting the defense.

I have found that sometimes when you get someone (or something) because they(or it ) are the only one left you can end up with the bad apple (so to speak), not so in the case of Anthony Vaupel. He has a good reputation in Knox County. Katfishponders has provided information on James Harrell and Knox County State's Attorney John Pepmeyer in an earlier entry so I thought it would be good to give you some background on the current defense lawyers in this case.

Lead Counsel- Jeremy Karlin

Jeremy S. Karlin is a member of the law firm Alcorn Karlin ,LLC and focuses his practice in the areas of criminal and civil trial practice, domestic relations/family law, mediation and worker’s compensation. Mr. Karlin was born in Stamford, Connecticut in 1969, and raised in Fairport, New York. He received his bachelor of arts degree at Syracuse University in 1991 and his jurisdoctorate degree at Loyola University of Chicago in 1994, where he was a member of the Loyola Moot Court Team and a recent cases editor of the Consumer Law Review. Mr. Karlin is admitted to the Illinois and the Wisconsin State Bars and is a member of the Knox County, Illinois State and Wisconsin Bar Associations. He is a member of the Illinois State Bar Association General Assembly. Mr. Karlin served as an Assistant Knox County State’s Attorney from 1995 to 1997 before joining the firm. Mr. Karlin has been certified by the Illinois Supreme Court as Lead Counsel in the Capital Litigation Trial Bar. He has been certified by the Ninth Judicial Circuit to serve as a mediator in child custody and visitation disputes.

Co-Counsel- Anthony Vaupel

Anthony W. ("Tony") Vaupel, originally from Burlington, Iowa, is an associate in the law firm Barash and Everette, LLC in the Galesburg office. Tony earned his bachelor's degree in psychology from Knox College where he focused his studies on body language. He received his law degree from Ohio Northern University. After receiving his license to practice law in the State of Illinois, Tony worked as an assistant state's attorney in Fulton County and then in private practice. Later, he served over two years as a Knox County assistant public defender where he tried a variety of cases. In less than four years of practice he has participated in 17 jury trials and countless bench trials. Tony is an officer of the Knox County Bar Association and serves on the oversight committee for the Knox County Teen Court program.
BORN: Burlington, Iowa, September 17, 1974.
ADMITTED TO BAR: 2001, Illinois; also admitted to practice before the U.S. District Court, Central District of Illinois.
EDUCATION: Carl Sandburg College (A.A., 1996); Knox College (B.A., 1998); Ohio Northern University (J.D., 2001).
MEMBER: Knox County Bar Association (Vice-President); Illinois State Bar Association.
PRACTICE AREAS: Bankruptcy, Criminal, Estate Planning & Administration, Family, Juvenile, Personal Injury.

Assisting Counsel- John Hanlon

I don't have a picture of John Hanlon. He appears to be in his mid to late 50's. Mr. Hanlon is from the Office of the State Appellate Defender (OSAD)in the Capital Trial Assistance Unit(CTAU) in the Springfield office. The Capital Trial Assistance Unit is staffed with attorneys who provide trial assistance in death penalty cases in which the defendant is indigent. The unit also provides assistance by expert witnesses, investigators, and mitigation specialists. The mission of this office is to ensure that indigent defendants facing the death penalty receive the assistance of zealous, dedicated attorneys armed with resources adequate to properly investigate and defend their cases at trial and at sentencing.
Katfishponders thinks John Hanlon has a very impressive resume.....Hanlon began his legal career in 1983 as a staff attorney with the Illinois State Appellate Defender’s Office. Shortly after taking that position, John and co-counsel Tim Gabrielsen landed the assignment of defending Rolando Cruz, following Cruz’s 1985 conviction and death sentence for the murder of Jeanine Nicarico. In 1988, John and his co-counsel persuaded the Illinois Supreme Court to reverse Cruz’s conviction. When Cruz was convicted a second time and sent back to death row in 1990, John recruited a young lawyer by the name of Larry Marshall, a new professor at Northwestern Law School, to work with him on Cruz’s second appeal. That was the beginning of the Innocence Project movement in Illinois. The two succeeded in getting Cruz’s conviction vacated a second time. The third trial resulted in the dramatic acquittal of Rolando Cruz after it was revealed that two detectives had fabricated a "vision" confession. William Kunkel as appointed as special prosecutor, leading to the indictment of police and prosecutors who were known as the DuPage 7. On Jul 28, 2009 Brian Dugan pled guilty to killing Jeanine Nicarico, therefore Cruz had been wrongly convicted 2 times before being aquitted.

John’s work on the case of Joe Burrows and Randy Steidl contributed to their release from death row, and the Burrows case was cited by Gov. Ryan when he announced a moratorium on capital punishment. He currently serves as an adjunct professor at UIS teaching a class called Wrongful Convictions.

There is no doubt in katfishponders mind that Nicholas Sheley will have a very able team of attorneys working his case and will receive a vigorous defense and a fair trial in Knox County. I will do an entry at another time on the attorneys from the IL Attorney General's office who are assisting the State's Attorney in the prosecution of Nicholas Sheley. For now I'm about half way through the entry for the February 19 pretrial hearing mentioned here, I'll post that soon.

Click here to see more information about the relationship between Sheley and Harrell. For complete coverage of this case at katfishponders click here. There are a lot of entries so you will have to go beyond the first page, they are arranged newest to oldest. You can also click on the names under the label section on the right side of the page.

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